Jus ad Bellum and Canada s war in Afghanistan

Transcription

1 Jus ad Bellum and Canada s war in Afghanistan by Denise Marie Lemay A Thesis submitted to the Faculty of Graduate Studies of The University of Manitoba in partial fulfilment of the requirements of the degree of MASTER OF ARTS Department of Political Studies University of Manitoba Winnipeg Copyright 2012 by Denise Lemay

2 1 Contents Chapter 1: Just War and Jus ad Bellum... 2 Historical Evolution of Just War and Jus ad Bellum... 5 Contemporary Jus ad Bellum Criteria Conclusion Chapter 2: Operation Apollo Public Declaration of Intent Last Resort Just Cause Reasonable Chance of Success Conclusion Public Declaration of Intent Last Resort Just Cause Reasonable Chance of Success Conclusion Chapter 4: Jus ad Bellum and Canada s war in Afghanistan Bibliography... 98

3 2 Chapter 1: Just War and Jus ad Bellum The concept of just war and associated body of theory has a long and varied history. Cicero first questioned the ethics of war when he questioned the brutality of war. It has since evolved into three core elements; jus ad bellum (law of war), jus in bello (law in war) and jus post bellum (law after war). The use of jus ad bellum, jus in bello and jus post bellum has varied over the course of history. Although the employment of just war terms in the public domain today are rare, moral and ethical explanations for decisions to use force are common place. After the September 11, 2001 (9/11) World Trade Center and Pentagon attacks, President George W. Bush declared war against terrorism. Bush s initial step in entering Afghanistan was to request the Taliban government to hand over the responsible al Qaeda leaders into US custody. When this request was rejected, Bush ostensibly declared war and launched Operation Enduring Freedom (OEF). During this process, the North Atlantic Treaty Organization extended its support to the US through an Article V declaration. Subsequently, beginning with Great Britain, allied nations, including Canada, committed forces in support of OEF. A month later, the United Nations Security Council (UNSC) passed Resolution 1378 (14 November 2001) implicitly legitimizing the overthrow of the Taliban in stating that the UN would play a primary role in establishing an interim government and requested that allied forces participate in the effort. The Resolution stated, Deeply concerned by the grave humanitarian situation and the continuing serious violations by the Taliban of human rights and international humanitarian law Expresses its strong support for the efforts of the Afghan people to establish a new and transitional administration leading to the formation of a government

4 3 Affirms that the United Nations should play a central role in supporting the efforts of the Afghan people to establish urgently such a new and transitional administration leading to the formation of a new government Calls on Member States to provide: support for such an administration and government, urgent humanitarian assistance and long-term assistance for the social and economic reconstruction and rehabilitation of Afghanistan and welcomes initiatives towards this end. 1 With a UN mandate and NATO Article V declaration, Canada quietly moved to support the US by providing forces to the campaign. In so doing, explanations of Canada s military commitments to Afghanistan have concentrated upon the UN, NATO and Canada s vital bilateral relationship with the US. There have been ethical and moral arguments about the importance of Canada s commitment, especially in terms of ensuring fundamental human rights in Afghanistan. In addition, political debates emerged regarding the ethical behaviour of the Canadian Forces (CF), especially concerning the issue of detainees. From a wider perspective, ethical and moral arguments, substituted by accepted current values, have been common assessments of Canadian Foreign Policy. The purpose of this study is to examine the utility of a just war explanation for understanding Canada s decision to commit its forces to the war in Afghanistan. In so doing, the concentration is upon jus ad bellum in first identifying the core criteria associated with the concept and then applying them to the Canadian decision. Importantly, this analysis cannot be limited to a single decision. Rather, there are three decisions that need to be evaluated: the initial combat commitment to OEF under Operation Apollo in 2001, the decision to return to Afghanistan as part of NATO s International Security Assistance Force (ISAF) in 2003 and the decision to commit troops to Kandahar in The Canadian commitment to the UN, NATO and US are 1 United Nations Security Council Resolution " United Nations Security Council June 2011

5 4 important explanations for why Canada entered into the Afghan War. Yet, the key issue is that these explanations have ignored a value-based explanation which is at the core of just war and jus ad bellum. Thus, this analysis strives to provide a holistic comprehension by exploring the utility of an ignored body of explanation. This first chapter is devoted to the development of just war and jus ad bellum. The chapter reviews the history of its evolution as the means to identify the core criteria for evaluating the Canadian decisions when entering into the war in Afghanistan. The concept of just war is traced through the Greek and Roman period then follows the work of Augustine, Aquinas, Vitoria, Grotius, up to the developments incorporated in international law over the last century or so. The subsequent chapters provide a brief description of the phases of Canada s involvement in Afghanistan then analyze the phases using jus ad bellum s criteria. Many articles are written on the justification of the US going to war as a defensive measure, all of which cite 9/11 as an explanation. There is debate in Canada about whether defending Canada s bilateral relationship, NATO commitment and UN mandate was a moral and ethical reason for entering the war. Despite the debate, there has not been any extensive examination into the decision Canada made surrounding the concepts of just war and jus ad bellum. Reflecting upon just war and jus ad bellum is important in determining if Canada s decision of entering into Afghanistan was considered ethically and morally.

6 5 Historical Evolution of Just War and Jus ad Bellum Today, just war, and in particular jus ad bellum, is conceptualized through six criteria. These are public declaration of intent, reasonable chance of success, proportionality, last resort, just cause and legitimate authority. These criteria are the product of a long historical evolution. According to John Langan, the Roman Catholic Church has the most historical and official association with just war primarily through the works of St. Augustine. 2 Yet, just war is also found in ancient Greek and Roman philosophy. Aristotle and Cicero first thought about the consequences of entering into war and the actions during war mainly through ethical studies. As with St. Augustine s contribution, both the Greeks and the Romans sought divine interpretations that justified war. Jus ad bellum, the laws of resorting to war, and jus in bello, the laws in war, were touched upon in ancient times but were never fully developed nor codified until the 17 th century with Hugo Grotius. Aristotle s contribution to just war comes mainly from his studies in ethics. In Politics, Aristotle describes the inner workings of a perfect city. In this city, there are categories of people, one of which is the military class. The military class, according to Richard J. Regan, lived with three principles. The first is about defending one s own lands, nominally the foundation of the just cause criteria. The second principle is about aiding other Greek states that are incapable of ruling themselves, but not taking total control of those states. The last principle is to exert power over non-greek states that were considered naturally inferior. Regan explains the third principle by quoting 2 Langan, John. "The Elements of St. Augustine's Just War Theory." The Journal of Religious Ethics Spring 12.1 (1984).

7 6 Aristotle, it is part of nature s plan that the art of war should be a way of acquiring property and that it must be used both against wild beasts and against such men as are by nature intended to be ruled over. 3 While the military class trains for war, war is not the primary purpose of the state. In this context, Aristotle objects to the war-like state of Sparta and believes that Sparta will become a failed state once it can no longer wage war. Regan states, such a polity will lose its raison d être and peculiar way of life when it achieves or loses dominion over its neighbors. 4 Ethically, according to Aristotle, war should be avoided. In other words, war should be waged as a last resort. He could not envision states, like Sparta, leading peaceful, happy or cultured lives. Aristotle states, a city should not be considered happy, or its legislator praised, when its citizens are trained for victory in war and the subjugation of neighbouring cities. 5 The important aspect of Aristotle s just war is that it is the first known start of the ethics of war. Aristotle advocated that a just war is a war for the sake of peace. 6 This translates to the start of the concept of enduring peace which is an important criterion of reasonable chance of success. During this time period, sanctions existed in the form of divine intervention. David J. Bederman describes sanctions; the Greeks continued to believe that the gods would directly punish infractions of their own interests the ancient Greeks developed secular means of ensuring good faith, including experiments with anti-deceit clauses in 3 Regan, Richard J. "Justifying War. Just War: Principles and Cases. Washington, D.C.: Catholic University of America, 1996,15. 4 Regan, Aristotle, Politics. Trans. Ernest Barker. Ed. R. F. Stalley. Oxford: Oxford UP, 1998, Ibid.

8 7 treaties. 7 The concept that treaties were sanctioned by God did not end with the Greeks. This concept was passed down to the Roman era, which in turn, evolved into sanctions that governments and organizations, like the UN, use today. The period of ancient Roman rule also developed ideas related to just war. Marcus Tullius Cicero, born in 100 BC, was a Roman philosopher, lawyer and a prominent Roman politician. 8 Cicero s ideas about just war coincided with Aristotle s belief in the primacy of peace. However, wars were justified if they were waged for the purpose of punishment or repelling enemies 9 in order to achieve lasting peace. Cicero believed this was accomplished with war; in other words, peace was something to be constantly defended when won. Peace, then, was not merely absence of war; it was a condition that in practice resulted from war, and which would always demand a warlike stance. 10 Cicero believed in the superiority of the Romans (as Aristotle did of the Greeks). He believed war should be fought to control or rule others. He, also, believed that ruling others was beneficial to Rome as a way to prevent war. In other words, wars should be fought as preventative wars. His primary belief was that wars were fought not only for defense but to restore and create lasting peace. Cicero agreed with Aristotle that war was to be fought for the insurance of peace. He characterised war as an ultimate expedient 7 Bederman, David J. "Religion and the Sources of a Law of Nations." International Law in Antiquity. Cambridge England: Cambridge UP, 2001, Everitt, Anthony. Introduction. Cicero: the Life and times of Rome's Greatest Politician. New York: Random House, Regan., Hadrill-Wallace, J.M. "War and Peace in the Earlier Middle Ages." Transactions of the Royal Historical Society 5th ser. (1975): Cambridge Journal. Feb Accessed 11 July 2012, 158.

9 8 and declared the goal of war to be the unperturbed life in peace. 11 In other words, Cicero associated war with peace which is a portion of reasonable chance of success. In Rome, for a war to be just, the war had to have the approval of a corporation of special priests 12 called the collegium fetialium. This is the first step of the legitimate authority criteria of jus ad bellum. These wars were justified if the offending state was found guilty of disregarding its obligations to the Roman Empire. The priests were reasonable in requests for a stay of execution if the offending state requested it. Although, once the allotted time had passed and the violation not repaired, then a just war would be fought. Once the priests approved the war, the decision was still ultimately a political decision [that] was left with the senate and the people. 13 By having the priests sanction the war, the war became sanctioned by the Gods. This concept is known today as justum bellum. 14 Approximately 400 years after Cicero s death, St. Augustine developed and wrote formal documents relating to just war. 15 St. Augustine, a bishop in the Roman Catholic Church, drew his arguments for just war from the Old and New Testaments and Cicero. 16 St. Augustine believed wars should not be fought in self-defence due to the Christian belief that all life should be preserved, even an evil life. War should not be a selfish act 11 Nussbaum, Arthur. "Just War A Legal Concept." Michigan Law Review. Dec 42.3 (1943). Jstor. Accessed 29 Jan. 2011, Ibid., Ibid., Ibid. 15 Langan, Murnion, William E. "A Postmodern View of just war." Intervention, Terrorism and Torture: Contemporary Challenges to just war Theory. Ed. Steven Lee. Dordrecht: Springer, 2006, 24. Cicero discusses St. Ambrose in his just war theory development. However, this paper does not focus on St. Ambrose mainly due to St. Ambrose reiterating Cicero s just war theories. Louis Swift wrote an informative article on St. Ambrose s contributions to just war. Swift states that St. Ambrose was a typical Roman thinker for the time and, therefore, followed Cicero s beliefs. "St. Ambrose on Violence and War." Transactions and Proceedings of the American Philological Association, 101 (1970).

10 9 and self-defence is based on a selfish act. 17 Wars have a spiritual purpose. In this aspect St. Augustine did not believe that wars should be for personal self-defence but in defence of the church especially for disciplinary reasons. This is another stage in the development of wars fought for a just cause. Stevenson wrote that wars were fought against sinners in order to restore peace 18 which is the foundation of reasonable chance of success. When war was fought in defence of the divine, instead of human needs, war was just. St. Augustine and the church did not have a pre-supposition towards peace or war. 19 He addresses the just cause of war within a religious realm. To St. Augustine there were only two views of the world; one within Christianity and one without. He saw that wars were just when fighting on behalf of the City of God. 20 A war divinely authorized and on behalf of God was just. Importantly, a war divinely authorized had to be inspired for appropriate reasons. St. Augustine particularly believed that within the Old Testament just cause for wars could be authenticated. He viewed war, as Langan states, primarily in spiritual and attitudinal terms rather than a threat to human interests and survival or as the doing of actions which are evil. 21 It is important to note that St. Augustine, above all else, advocated peace; thus, wars were to be fought only as a last resort. William R. Stevenson writes that St. Augustine believed that recourse to war, 17 Hartigan, Richard Shelly. "Saint Augustine on War and Killing:The Problem of the Innocent." Journal of the History of Ideas 27.2 (1966), Ibid., Langan, Stevenson, William R. Christian Love and just war: Moral Paradox and Political Life in St. Augustine and His Modern Interpreters. Macon, GA: Mercer UP, 1987, 13. The City of God is the name of the book which St. Augustine wrote. 21 Langan, 22.

11 10 even when appropriate should be the last resort of prudent people. 22 As with Aristotle and Cicero, wars were fought to restore peace. To better understand St. Augustine s principals, war as a last resort and peace as the ultimate objective is key. St. Augustine states that it is, the desire for peace that war was waged. 23 Peace, in the fifth century, was defined as those who possessed faith. St. Augustine described universal peace as tranquility of order the peace of the body the peace of the irrational soul peace between mortal man and God peace between men peace as an ordered agreement among those who dwell together concerning command and obedience [and] the peace of the city. 24 It stands to reason that if earthly pleasures should only revolve around God, then justice must also. This leads to St. Augustine s first principle of just wars. St. Augustine believes that the undertaking of just wars relies on the sins of the enemy; even when we wage just war, our adversaries must be sinning. 25 A just war fought to protect God s virtue and rules, and against sin, for even the wars which arise from human passion cannot harm the eternal well-being of God nor hurt His saints; for in the trial of their patience they are rather benefited than injured. 26 The second principle incorporates human passions. The human capacity for evil is explained as not being part of a just war. Langan explains it as an, assessment of the evil of war in terms of the moral evil of attitudes and desires. 27 St. Augustine cautioned 22 Stevenson, Ibid., Ibid., Ibid., St. Augustine quoted in Langan, Ibid., 19.

12 11 against waging war for revenge, power or for the sake of violence. He viewed the love of violence and need for power as a human passion and not a divine reason for waging war. Violence in war is just when the war is fought as punishment on behalf of the Church but not for the love of violence; It is generally to punish these things, when force is required to inflict the punishment, that, in obedience to God or some lawful authority, good men undertake wars. 28 Similarly, Robert L. Holmes s writes that St. Augustine defined a just motivation for war not based on human emotions, but by emphasizing purity of soul and motivation. 29 St. Augustine s writings are a guide for people to look for justification for war and to strive for the correct balance of violence and proper authorization to wage war. This leads to the authorization for the use of violence 30 which is legitimate authority and is the beginning of two forms of justice in just war; jus ad and jus in. St. Augustine believed that violence in war was performed not in self-defence but for punishment on behalf of God. During St. Augustine s time, authority rested in a divinely authorized monarchy. He writes how God created a hierarchical society that validated the punishment of sinners. Stevenson suggests that, to assuage the misery and to punish the sinners God permitted political authority; God ordained herarchial [sic] arrangements of human beings and a home for the legitimate use of force. 31 Violence is an acceptable means to an end when seeking moral peace and war as unavoidable in the maintenance of morality. St. Augustine wrote let it be necessity, not choice, that kills 28 Langan, Elshtain, Jean Bethke. Just War Theory. New York: New York UP, 1992, Ibid., Stevenson, 60.

13 12 your warring enemy. 32 He repetitively sought responsibility in the use of violence; yet, violence is condoned if on behalf of the moral good of the majority. Langan termed this as violence used as a lesser evil. 33 St. Augustine s use of and permissibility for the use of violence rests within the hands of a higher authority; God s sanctioned representative and not within the hands of the general population. St. Augustine firmly believes that wars should be fought as a last resort and for maintaining morality. St. Augustine states that, wars should be waged by the good, in order to curb licentious passions by destroying those vices which should have been rooted out and suppressed by the rightful government. 34 St. Augustine s primary focus is the spiritual aspects of just wars. His fourth principle further elaborates spirituality. During this timeframe religious war, for the purpose of converting non-christians, was a common practice. He firmly believed if redemption was not possible through understanding and patience then wars were justified; we often have to act with a sort of kindly harshness, when we are trying to make unwilling souls yield, because we have to consider their welfare rather than their inclination. 35 This is what Langan calls the dualist epistemological approach. It is dualistic in its approach as a positive war for spiritual conversion and a just act in that war is used as a method to save the non-christians from the inability of seeing the appropriate way to live. 36 To St. Augustine peace meant the incorporation of Christian faith because a life without faith was not a life of peace. 32 Langan, Ibid. 34 Ibid., Ibid. 36 Ibid. 35.

14 13 St. Augustine also advocated an understanding of the church s teachings in relation to entering into, and attitudes towards war. For war to be just it must be fought to achieve a peace through understanding God s will. Therefore, war was an act of peace. Even so, this does not provide a clean justification for war in the Christian manner of thinking. Therefore St. Augustine turned to the Old Testament. 37 St. Augustine discussed how respectable Christian people were not only pacifists but also soldiers. Christians could and should, when sanctioned by God, fight wars. Frederick H. Russell explains it as, the just warrior restrained sinners from evil, thus acting against their will but in their own best interest. [St. Augustine] recogniz[ed] that the legitimacy of warfare had to be grounded in evangelical precepts 38 St. Augustine assumed a paternalistic attitude towards war; there were times that punishment needed to be meted out when the person sinning did not know any better and this responsibility fell onto the shoulders of innocent Christian soldiers. In order for St. Augustine s just war to be successfully implemented there must be the capability of the population to accept legitimate authoritarian decisions. This element can be understood within the context of the time. The fifth century was not a time that men had come of age. 39 Authoritarian rule and decision making was the accepted practice. Considering that the decisions of the rulers were sanctioned by God, the decision to wage war was just. This absolved soldiers, who were fighting against their Christian nature, from the sin of waging wars. The moral responsibility of violence and war rested firmly on the shoulders of the ruler. 37 St. Augustine used the New Testament as a means to authenticate Christians serving in the military and the use of violence not as a means of identifying just wars. See Langan page 26 and Russell, Frederick H. The Just War in the Middle Ages. Cambridge: Cambridge UP, 1977, Langan, 34.

15 14 St. Augustine is best known as the developer of just war theory. Through his writings he furthered the concepts of just cause, last resort, reasonable chance of success and legitimate authority. He was a firm believer that just cause was self-defence when defending the church. However, war was not to be used as a first resort. St. Augustine argued that the church advocated peace first and thus did not have a presumption towards war. In other words, war was a last resort. During St. Augustine s time, legitimate authority laid with the monarchy that represented God and the church. As with Aristotle and Cicero, St. Augustine viewed war as a measure to restore and ensure peace. The next stage in just war development was during the medieval period. Medieval just war emerged at the end of the crusades and is closely associated with St. Thomas Aquinas. This phase takes the spiritual authorization of war out of the religious realm and replaces it with natural law. Murnion states, natural law provided a rational armature for divine law. 40 It is this step in just war that codifies the ethics surrounding war, thereby, making it possible to be carried throughout future centuries. Jus ad bellum and jus in bello is easily traced to Aquinas just war contributions. The terms, themselves, were not used during Aquinas time nor was jus in bello expanded upon during this time. Aquinas began with the pursuit of the concept that there are people who should be exempt from the war effort. These people would be the clergy and religious citizens. Murnion states that, the pope and Holy Roman emperor sought to exempt clerics and religious from the effects of war by defining them as innocents 40 Ibid.

16 15 (harmless ones) because of the canonical proscription against members of their status bearing arms. 41 Anthony Coates believes that Aquinas was not advocating war but furthering limits of entering into war. Coates states, the concentration on jus ad bellum does not imply a preference for justification over restraint. On the contrary, the prime purpose of jus ad bellum is the restraint of war. 42 Aquinas followed a similar path as St. Augustine in establishing that war should be a last resort and should have moral presuppositions. From this point, Aquinas seeks to raise, not lower, the moral threshold of war. 43 Aquinas jus ad bellum has three core elements; authorization of war through a legitimate source (kings or the pope), just cause and right intention. Aquinas authorization for war from a non-secular source is a new element. Authority now rests with a ruler of the highest power who has legitimate control over the population. Aquinas explains that the general population does not have the right to declare war; the only person who can legitimately declare war does not have a superior. 44 Aquinas believes the sovereign must have a high moral and virtuous understanding. It was the kings and queens who understood morality and virtue and would act in a manner that was for the common good. Even though Aquinas had taken just war out of the religious realm, his fundamental concepts still reflected Christian conduct. Reflecting Aquinas, Alex J. Bellamy writes, private individuals may not legitimately declare war 41 Murnion, Rodin, David and Henry Shue. "Is the Independent Application of Jus in bello the Way to Limit War?" Just and Uunjust Warriors: the Moral and Legal Status of Soldiers. Oxford: Oxford UP, 2008, Coates, A. J. "Legitimate Authority." The Ethics of War. Manchester, U.K.: Manchester UP, 1997, Bellamy, Alex J. Just Wars: from Cicero to Iraq. Cambridge: Polity, 2008, 48.

17 16 because they have superiors with greater rights and do not have the right to mobilize the people into an army only kings with no superiors had the authority to wage war. 45 The second core element is just cause. Just cause for war could be for punishing a person who had not taken the appropriate steps of righting a wrong, re-appropriating stolen property or territory and retribution for injustices. 46 Just cause relates to tyrannical rulers who did not rule in a moral, virtuous or just fashion. As such there was just cause to wage war against tyrannical rulers and tyrannical rulers did not have the right to defend themselves. According to Aquinas, a just war is one that avenges wrongs, when a nation or state has to be punished for refusing to make amends for wrongs inflicted by its subjects, or to restore what it has seized unjustly. 47 The last of Aquinas core elements is waging war for the right intentions. Aquinas right intention is similar to St. Augustine s concept of not fighting for human passions. Aquinas states that wars should not be fought for revenge, lust, power or acquisition of goods. 48 Wars should only be waged as a reinforcement of justice. He thought that right intentions fell into the category of either achieving something good or of avoiding something evil. 49 When entering into war there must be virtuous and moral intent and that a just cause must be the preservation of justice. The next shift in just war came when the nation-state developed and the exploration of Asia, Africa and the Americas occurred. Murnion notes that just war 45 Bellamy, Ibid. 47 Aquinas cited in Renick, Timothy Mark. ""Just War" and Double Effect." Aquinas for Armchair Theologians. Louisville, KY: Westminster John Knox, 2002, Bellamy, Ibid., 100.

18 17 changed in two aspects. One was the re-incorporation of divine law into the justification of war. Martin Luther s contribution to just war was minute and born out of the Protestant and Catholic conflict. His contribution was to justify Christian soldiers and war. Luther reincorporated a divine reason for war. As Murnion states, the justice of the cause the repression of heresy was supposed to vindicate a remorseless prosecution of the war. 50 Luther s contribution allowed a soldier the choice if he wanted to fight if he knew a war is unjust. Morality for a soldier was important to Luther. He struggled to find a way to protect soldiers. In this manner, Luther incorporated St. Augustine s idea that wars were fought as punishment against sinners, which exonerated the soldiers who knew they were fighting only on behalf of God. J. Daryl Charles states, the soldier fulfills his office by punishing the wicked this serves the greater good of families and communities [therefore war is] both a Christian and an act of love. 51 The Spanish influence occurred with the exploration of the New World during the 16 th century. Exploration combined with the continental religious wars further developed the natural law concept. During this period a hypothetical law postulated to be common to all peoples by virtue of their humanity 52 was called jus gentium. To Francisco de Vitoria, natural law was reason, justice and universal morality, 53 and he is considered the founding father of contemporary international law by many scholars. 54 Vitoria pursued the concept of natural law in order to find a common ground to aid in negotiations between the warring Catholics and Protestants and as a way to determine legitimacy in 50 Murnion, Charles, J. Daryl. "Just-War Thinking in the Late Medieval and Early Modern Period." Between Pacifism and Jihad: Just War and Christian Tradition. Downers Grove, IL: InterVarsity, 2005, Murnion, Ibid., Bellamy, 50.

19 18 conflict against non-christians. Vitoria had a particular interest in developing just war due to Spain s colonization of the Americas. Even though Vitoria discussed who had legitimate authority to wage war, his primary focus was on just cause and the conduct of war. Vitoria continued to incorporate the monarch but clarified the monarchy, chosen by God as the legitimate authority which equated to just wars legitimized by God. When considering conduct in wars, he furthered jus in bello by postulating that the military can justly, though unintentionally, harm innocents and in cases when justice is positively affirmed then intentional though indirect harm 55 to innocents is acceptable. Just cause was attained when the waging of war did not exceed the sum of the offending action; in other words, proportionality. As Bellamy states, war was only justifiable if the injury it sought to redress was greater than the probable evil the war would unleash. 56 Another influential Spanish just war theorist was Francisco Suarez. Suarez furthered the concept of international law, by advancing the notion that each nation is sovereign. Suarez also promoted just war through Christian beliefs. Legitimate authority for Suarez was the same as Vitoria. It rested in the hands of the monarch who was divinely chosen. Despite this, Suarez did not advocate the Church as the legitimate source to govern the world. Howard M. Hensel argues that, Suarez rejected as vain inventions the assertion that the Christian Emperor, or at least the supreme Pontiff, has direct temporal dominion over the whole world. 57 In so doing, he removed the 55 Murnion, Bellamy, Hensel, Howard M. "Part 1: The Western Just War Tradition." The Prism of just war: Asian and Western Perspectives on the Legitimate Use of Military Force. Farnham, Surrey, England: Ashgate, 2010, 44.

20 19 personal aspect of war. For Suarez, a just cause to enter into war must be impersonal and for the furtherance and defence of the common good. Most important to the evolution of just war was when international law formerly emerged. Grotius advocated for a natural hypothetical common law of all nations or peoples 58 and religion to be a right for all people, no matter what religion. As such, Grotius placed limitations on those who are considered legitimate authorities, states and the role of religion in the justification of war. Grotius also directly incorporated jus ad bellum and jus in bello into just war. He developed six criteria for jus ad bellum upon which the contemporary understanding resides. Notably, Grotius placed more emphasis on jus in bello than jus ad bellum. Grotius first criterion is similar to Vitoria s concept, where war had to be preventative or to right a wrong. This criterion is directly related to just cause. Grotius wrote that the sole just cause for war is self-defence. This includes the prevention of harm towards a person or objects; the first cause of a just war is an injury not yet done which menaces body. 59 Defence against personal harm is also considered just cause; if any one be [sic] in danger of receiving a buffet, or the like hold that he has a right to protect himself by killing his enemy. 60 Thus, defending the population against an aggressive attack is just. The last justified self-defence is associated with property. It is just to defend property and good against thieves and invaders; I [Grotius] do not deny that in order to preserve our goods, the robber, if need be, maybe be killed. 61 Thus, 58 Bellamy, Grotius, Hugo. Grotius on the Rights of War and Peace: An Abridged Translation. Trans. William Whewell. Vol. 1. Cambridge: Cambridge UP, 1853, Ibid., Ibid., 65.

21 20 defending territory is also a just cause. The term Grotius uses to describe their offences is civil injury. Civil injuries are injustices performed against a community or the people of a state; breach[es] and violation[s] of public rights and duties which affect the whole community considered as a community, and are distinguished by the harsher appellation of crimes and misdemeanours. 62 Grotius renamed sovereign authority to legitimate authority. In order to be legitimate, the authority has to have laws for the citizens, enforce those laws and have legal counsel to help aid and guide the authority ruling the nation. Grotius states that sovereign authority: Consist[s] of three parts which form the necessary substance of every state; and those are the right of making its own laws, executing them in its own manner, and appointing its own magistrates. 63 This leads to the right of the sovereign power to address civil injuries. These types of injuries provide a just means for the sovereign authority to wage war. Grotius states a, distinguishing mark of a sovereign power the right of making war and peace. 64 The third criterion is the state needs to declare its intention. 65 Grotius believed that stating intent removes war from the private sphere and brings it to the public. As an advocate of peace, Grotius hoped that by declaring a state s intention it might prevent war from occurring. He argued that making a public announcement about waging war would remove the exclusivity of those who made the decision, provided an avenue for the opponents to surrender and provided the offenders advanced knowledge which would 62 Ibid. 63 Ibid., Ibid. 65 Charles, 65.

22 21 give the offending nation the opportunity to reconsider its position. 66 Grotius believed that this in itself may have the effect of ultimately preventing war. 67 The fourth criterion is proportionality. Grotius did not believe that punishment should outweigh the crime. When incorporating proportionality into jus ad bellum, a war should not be fought for inconsequential reasons making only grave injustices as a just cause for war. 68 Grotius provides three options to determine if a war is proportional; [first] the matter under consideration seems to have an equal effectiveness for good and for evil [and] has somewhat more of good than the evil has evil [second] if the good and evil seem to be equal [third] if the good and evil seem to be unequal then the thing is to be chosen only if its effectiveness for good is greater when compared [to] the evil itself. 69 These options provide the opportunity to consider the decision to wage war if the war outweighs the risk of war and the injustice that occurred. Grotius believed that ensuring a war was proportional would avoid genocide and disproportionate retribution against the offending nation. Grotius believed that, when a war leads to the slaughter of a people [a]nd war [is] undertaken for trivial reasons, or to exact unnecessary penalties [then] war [should] not to be undertaken. 70 The fifth condition for just war is that the state must have a reasonable chance of success. 71 This condition and the previous condition are interconnected. Success must include proportionality into the equation of the injustice caused and the outcome of the war. Charles states, proportionality is governed by a just political aim toward which war 66 Ibid. 67 Ibid. 68 Ibid. 69 May, Larry. "The Principle of Proportionality." Aggression and Crimes Against Peace. New York: Cambridge UP, Ibid., Ibid.

23 22 must be directed there must result from war a balance of good over evil. 72 The only viable outcome for a just war is lasting peace; if war is undertaken for the sake of peace then war itself will lead us to peace. 73 Grotius notes to fight a war without a foreseeable peace is not a just war; in the very heat of war the greatest security and expectation must be in the unabated desire, and invariable prospect of peace, as the only end for which hostilities can be lawfully begun. 74 Thus, a war should only be fought if reasonable chance of enduring peace can be obtained. The last principle for a just war is that war must be a last resort. Grotius believed that only in exceptional cases should war be waged. Here Grotius states that even when there is danger present, war should be a last resort. Similar to declaration of intent, Grotius believed that last resort provided an avenue to rectify wrongs; if any one [sic] direct against us violence delay allows recourse to many remedies. 75 Grotius adamantly believed that war should be avoided and, thus, last resort was meant to ensure that all means to avoid war were attempted. Kimberly Hudson states: for Grotius, the last resort hurdle is cleared only if diplomacy, courts and arbitration cannot solve a dispute that rises to the level of just cause for war: where the power of law ceases there war begins. 76 Last resort also provides the opportunity to ascertain that all the criteria of jus ad bellum have been met prior to entering into war. Grotius was the first to formalize the concept of jus ad bellum, afterwards it changed minutely. It was not until after WWI and the League of Nations that jus ad 72 Ibid. 73 Grotius, Ibid., Ibid., Hudson, Kimberly A. "Other Jus Ad Bellum Categories." Justice, Intervention, and Force in International Relations: Reassessing Just War Theory in the 21st Century. London: Routledge, 2009, 93.

24 23 bellum was internationally codified. As with just war tradition, the codification of the laws of war was established over time. The first introduction was influenced by the 1874 Brussels Conference 77 but not codified until the 1899 Hague Convention: Convention (II) with Respect to the Laws and Customs of War on land and its Annex: Regulations Concerning the Laws and Customs of War on Land. The 1899 Hague Convention s primary concentration was jus in bello. However, the first sentence in the convention demonstrates the beginning stages of an international interest in regulating the use of force. This sentence states the signatories are primarily, seeking means to preserve peace and prevent armed conflicts among nations. 78 Convention III of the 1907 Hague Convention adopted Grotius third condition regarding the resorting to force. This is the necessity of declaring the intention of war if hostilities erupted between signatory countries. Article one of the Convention states, hostilities between themselves must not commence without previous and explicit warning, in the form either of a declaration of war, giving reasons, or of an ultimatum with conditional declaration of war. 79 Article two states the assigned neutral countries were to be notified about the intent of hostilities and that the hostilities could not begin prior to their notification, thus, providing a declaration of intent. Convention II in 1899 and Convention III in 1907 are important first steps in codifying jus ad bellum internationally. 77 "International Humanitarian Law - Hague Convention II 1899." International Committee of the Red Cross, para Ibid. 79 "International Humanitarian Law - Hague Convention III 1907." International Committee of the Red Cross, para 4.

25 24 Seven years after the 1907 Hague Convention, WWI began. Following the devastation from the war, world leaders began the process of regulating the use of force. The Treaty of Versailles and the League of Nations were instrumental in this development. The Treaty of Versailles Articles 12 through 16 relate to the League of Nations, especially considering the use of force. The League s main interest was in the preservation of peace; to promote international co-operation and to achieve international peace and security by the acceptance of obligations not to resort to war. 80 Article 12 and 13 related to the Hague Conventions concept of arbitration prior to a declaration of war; the Members of the League agree that, if there should arise between them any dispute likely to lead to a rupture they will submit the matter either to arbitration or judicial settlement or to enquiry by the Council. 81 Articles 14 and 15 reference the arbitration committee and their responsibilities. In particular, Article 15 states that, the Council shall endeavour to effect a settlement of the dispute if the dispute is not thus settled, the Council shall make and publish a report containing a statement of the facts of the dispute and the recommendations which are deemed just and proper in regard thereto. 82 Article 16 discusses the consequences of a signatory country resorting to war without the approval of the Council. 83 The consequences include sanctions, including but not limited to, economic and trade against the offending state(s) Avalon Project - The Covenant of the League of Nations." Avalon Project - Documents in Law, History and Diplomacy, 16 Feb. 2011, Introduction. 81 Ibid. Article Ibid, article 14 and Ibid., article Ibid.

26 25 In 1928 another step in the codification of war was signed, with the Kellogg- Briand Pact. The Pact had 63 signatories which was a record number for that period. 85 This Pact has three articles. The first article denounces the use of force to solve interstate disputes. Article 1 reads, the High Contracting Parties agree that the settlement or solution of all disputes or conflicts of whatever nature or of whatever origin they may be, which may arise among them, shall never be sought except by pacific means. 86 Disputes were required by the signing parties to be solved through peaceful methods and the Pact only forbids wars between signatory countries. 87 After a succession of failures of the League and at the end of WWII, the League turned its powers over to the newly formed UN. Many of its legal principles remained, including the desire to regulate the resort to force. Just like the introduction to the League s charter, the UN seeks to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind. 88 The UN codifies jus ad bellum in several articles. The first is article 2 (4) which states that the signatory countries shall abstain from the use of threat or participating in the act of war against the principals outlined in the UN Charter. 89 Similar to the League s Charter, Article 41 of the Charter states that the first step, prior to resorting to force, is imposing sanctions on a state that is acting in an inappropriate manner. 90 Article 51, directly discusses one of St. 85 Dinstein, Yoram. "The Contemporary Prohibition of the Use of Inter-State War." War, Aggression and Self-Defence. Cambridge England: Cambridge UP, 200, "Kellogg-Briand Pact 1928." Yale University. Ed. William C. Fray and Lisa A. Spar Web. 24 May Chapter 4 in Dinstein book provides a brief explanation of the Kellogg-Briand Pact articles. The articles can be seen at 88 "Charter of the United Nations." Welcome to the United Nations: It's Your World. 17 Feb. 2011, preamble 89 Ibid., article 2 para Ibid., article 41.

27 26 Augustine and Grotius categories of jus ad bellum and states, nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations. 91 NATO incorporates the UN s Article 51 into its charter, and Article V incorporates collective defence. Member states shall be called upon to support member countries if an attack from non-member countries occurs. The Article states, The Parties agree that an armed attack against one or more of them in Europe or North America shall be considered an attack against them all and consequently they agree that, if such an armed attack occurs, each of them, in exercise of the right of individual or collective self-defence recognized by Article 51 of the Charter of the United Nations, will assist the Party or Parties so attacked by taking forthwith, individually and in concert with the other Parties, such action as it deems necessary, including the use of armed force, to restore and maintain the security of the North Atlantic area. 92 Contemporary Jus ad Bellum Criteria Although neither the Hague Convention, League, UN or NATO enunciated in detail the criteria for jus ad bellum, the conventions of jus ad bellum are central to the morality of entering into war. In total, jus ad bellum today has six criteria. The first criterion is public declaration or intention to declare war. This step s inception began with Grotius. As Grotius argued, this is to provide the opportunity for the offending state to rectify its behaviour. Today, the notification is not only directed towards the leader but also towards the general public. 93 Laurie Calhoun discusses how the declaration of a 91 "Charter of the United Nations." article "NATO and the Scourge of Terrorism." North Atlantic Treaty Organization. 8 Feb Accessed 08 July Calhoun, Laurie. "Legitimate Authority and "Just War" in the Modern World." Peace Change (2002): Wiley Online. 17 Feb. 2011, 40.

28 27 state s intent has two different dimensions today. One is the declaration as merely a formality. At this stage in a dispute, the offending nation is already aware of how its actions are affecting the opposing country. Calhoun notes that at this point in the conflict, [the declaration] is unlikely to have any effect. 94 The second dimension is the controversy surrounding the necessity of the declaration due to the speed in which war occurs today. Calhoun quotes William V. O Brien who states, any examination of modern wars will show that the importance of a declaration of war has diminished greatly because of the split-second timing of modern war, it is often undesirable to warn the enemy. 95 Yet, current just war theorists still include declaration as part of jus ad bellum. Calhoun states, a public declaration of war conveys to the population of the offending nation a unity of purpose in the population it announces to their counterparts that an injustice has been committed and we are prepared to resort to arms to correct it in recent times leaders preparing their countries for war have made graphic their own observance of the public declaration requirement. For example, Bush proclaimed in his speech of January 16, 1991; Saddam was warned over and over again to comply with the will of the United Nations 96 It is important to note that a declaration needs to occur prior to going to war in order to allow the offending state the time necessary to rectify the offense. The second and third criteria are proportionality and reasonable chance for success. The purpose in a just war is not to exterminate a society, ethnicity or government, but to rectify the offense and recreate a peaceful society. Recreating a peaceful society is important as a basis of just war theory and, in particular, the reasonable chance of success criteria of ensuring lasting peace. Michael Brough, John 94 Ibid., Ibid., Ibid.

29 28 W. Lango and Larry Van Der Lindon state that part of reasonable chance of success relies on the basis of just cause and on a broader account, a just war entails a possibility of creating an enduring peace. 97 It also takes into account proportionality. When weighing cost versus benefit, proportionality looks to justify the benefit of waging war compared to the cost of the offensive action. This includes the economic, social, political costs and the cost of life, particularly, civilian life. This is known as the principle of double effect, described by Calhoun as, bad consequences such as civilian deaths are permissible during wartime so long as they are unintended. 98 Proportionality is also a criterion in jus in bello. Different from jus ad bellum, proportionality for jus in bello is defined as the, means that the methods used in war must be proportional to the ends and limited to achieving the just goal of the war. The best example of this type of question is the case of the atomic bombs [used] on Hiroshima and Nagasaki. 99 The similarity between proportionality in jus ad bellum and jus in bello is seen when jus ad bellum limits war s consequence; a State cannot seek to annihilate another State in defending itself when that defence could be effectuated with significantly less loss of life. 100 It is important to remember that proportionality is incorporated into jus ad bellum s reasonable chance of success. Reasonable chance of success takes into account that the punishment, in other words the methods used to ensure peace, are not disproportionate to the offence. The previous example of Hiroshima and Nagasaki demonstrates an arguably disproportionate method used to ensure peace. Simplistically, 97 Brough, Michael W., John W. Lango and Larry Van Der Linden. Rethinking the Just War Tradition. Albany: State University of New York, 2007, Calhoun, Shapcott, Richard. "The Ethics of Harm: Violence and Just War." International Ethics: A Critical Introduction. Cambridge, UK: Polity, 2010., May, 119.